G.S.L. Jr v. D.L.S. (memorandum)

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J-A03027-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN THE SUPERIOR COURT OF PENNSYLVANIA G.S.L., JR. Appellant v. D.L.S. Appellee No. 1486 MDA 2012 Appeal from the Order July 16, 2012 In the Court of Common Pleas of Susquehanna County Civil Division at No(s): 1999-581-CP BEFORE: BOWES, J., GANTMAN, J., and OLSON, J. MEMORANDUM BY GANTMAN, J.: Filed: March 6, 2013 Appellant, G.S.L., Jr. ( Father ), appeals from the order entered in the Susquehanna County Court of Common Pleas, which granted primary physical custody of the minor child, M.L. ( Child ), to Appellee, D.L.S. ( Mother ), subject to Father s periods of partial custody. We affirm. In its opinions, the trial court fully and correctly set forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them. Father raises fifteen issues for our review: WHETHER THIRD PARTIES MAY INTERFERE OR OBSTRUCT A NATURAL PARENT S RIGHT TO CUSTODY OF THEIR [CHILD] WITHOUT INSTITUTING DEPENDENCY OR CUSTODY PROCEEDINGS WITH A SHOWING THAT [CHILD] IS NOT PROPERLY CARED FOR OR A NATURAL PARENT IS UNFIT? J-A03027-13 WHETHER THIRD PARTIES MAY PLACE THEMSELVES IN LOCO PARENTIS STATUS TO [CHILD] IN DEFIANCE OF A NATURAL PARENT S WISHES AND THE PARENT/CHILD RELATIONSHIP? WHETHER THE TRIAL COURT COMMITTED AN ERROR OF LAW OR ABUSED ITS DISCRETION IN AWARDING BOTH THIRD PARTIES AND NATURAL MOTHER PRIMARY PHYSICAL CUSTODY OF [CHILD] WHICH IS TO BE EXERCISED BY SUCH PARTIES CONCOMITANTLY? WHETHER THE TRIAL COURT COMMITTED AN ERROR OF LAW OR ABUSED ITS DISCRETION IN FINDING NATURAL MOTHER HAD PRIMARY PHYSICAL CUSTODY OF [CHILD] WHEN MOTHER DID NOT AND CLEARLY RELINQUISHED HER CUSTODIAL RIGHTS TO [CHILD]? WHETHER A NATURAL PARENT WHO IS CLEARLY UNFIT MAY RELINQUISH THEIR CUSTODY RIGHTS, AS WELL AS THE CUSTODY RIGHTS OF THE OTHER NATURAL PARENT, TO THIRD PARTIES OVER THAT NATURAL PARENT S OBJECTION AND IN DEFIANCE OF THAT NATURAL PARENT S WISHES? WHETHER THE BURDEN OF PROOF IN A THIRD PARTY CUSTODY CLAIM RESTS WITH A NATURAL PARENT OR THIRD PARTIES? WHETHER THE TRIAL COURT COMMITTED AN ERROR OF LAW AND ABUSED ITS DISCRETION IN APPLYING THE LONGSTANDING GRUBER[1] RELOCATION ANALYSIS WHEN NATURAL MOTHER RELINQUISHED HER CUSTODIAL RIGHTS TO [CHILD] AND NO FINDING WAS MADE [THAT] NATURAL FATHER IS UNFIT TO CARE OR PROMOTE THE BEST INTERESTS OF [CHILD]? WHETHER THE TRIAL COURT COMMITTED AN ERROR OF LAW AND ABUSED ITS DISCRETION IN APPLYING THE NEW CUSTODY GUIDELINES PROMULGATED AND EFFECTIVE JANUARY 24, 2011, TO THIS CASE WHEN THE ____________________________________________ 1 Gruber v. Gruber, 583 A.2d 434 (Pa.Super. 1990). -2- J-A03027-13 PETITION FOR MODIFICATION OF CUSTODY WAS FILED ON JANUARY 6, 2011? WHETHER THE TRIAL COURT COMMITTED AN ERROR OF LAW AND ABUSED ITS DISCRETION IN DENYING NATURAL FATHER CUSTODY OF [CHILD] WHEN: i. THE TRIAL COURT MADE NO SUBSTANTIAL FINDING NATURAL FATHER WAS UNFIT TO CARE FOR THE CHILD OR HE SUFFERED FROM SEVERE MENTAL OR MORAL TURPITUDE; ii. MOTHER OF [CHILD] FLED WITH [CHILD] FOR A PERIOD OF SIX (6) YEARS IN DEROGATION OF AN ORDER FOR CUSTODY AND IN VIOLATION OF NATURAL FATHER S PARENTAL RIGHTS TO [CHILD]; iii. MOTHER OF [CHILD] UNQUESTIONABLY FAILED AND WAS NO LONGER SERVING THE BEST INTERESTS OF [CHILD]; AND iv. IT RELIED ON THE CREDIBILITY OF MOTHER OR THIRD PARTIES WHEN MOTHER DELIBERATELY DENIED NATURAL FATHER CUSTODY OF [CHILD] IN VIOLATION OF A COURT ORDER FOR CUSTODY FOR A PERIOD OF SIX (6) YEARS AND, THEREAFTER, RELINQUISHED HER PARENTAL RIGHTS TO THIRD PARTIES ONLY TO THE EXTENT OR CONTINGENCY THAT NATURAL FATHER WOULD NOT RECEIVE PRIMARY CUSTODY OF [CHILD]; THUS CONTINUING TO DEPRIVE NATURAL FATHER OF HIS PARENTAL RIGHTS TO [CHILD]? WHETHER THE TRIAL COURT S OPINION DENYING NATURAL FATHER PRIMARY CUSTODY OF [CHILD] WAS SUPPORTED BY SUBSTANTIAL EVIDENCE AND/OR IN THE BEST INTEREST OF THE CHILD? WHETHER FATHER HAS A PRIMA FACIE RIGHT TO CUSTODY OVER THIRD PARTIES WHEN MOTHER RELINQUISHED HER CUSTODIAL RIGHTS AND THE BEST INTEREST OF [CHILD] IS NO LONGER BEING SERVED IN NATURAL MOTHER S CUSTODY WHICH CAUSED NATURAL MOTHER TO RELINQUISH THOSE CUSTODIAL RIGHTS? -3- J-A03027-13 WHETHER THE TRIAL COURT COMMITTED AN ERROR OF LAW AND ABUSED ITS DISCRETION IN FINDING THIRD PARTIES WERE ONCE A PRIMARY CARETAKER TO [CHILD] WHEN NO EVIDENCE SUPPORTED SUCH A FINDING OF FACT? WHETHER THE TRIAL COURT COMMITTED AN ERROR OF LAW AND ABUSED ITS DISCRETION BY REFUSING OR LIMITING NATURAL FATHER OR FIT PARENT S CROSSEXAMINATION OR THE OPPORTUNITY TO SUBMIT EVIDENCE AS TO THE THIRD PARTIES TRACK RECORD REGARDING CUSTODY OF THE THIRD PARTIES OWN CHILD(REN)? WHETHER THE TRIAL COURT COMMITTED AN ERROR OF LAW AND ABUSED ITS DISCRETION IN FAILING TO AWARD NATURAL FATHER PRIMARY PHYSICAL CUSTODY OF [CHILD] WHEN: i. THE BEST INTEREST OF THE CHILD WAS NO LONGER OR EVER BEING SERVED IN THE CUSTODY OF NATURAL MOTHER; ii. NATURAL MOTHER RELINQUISHED PARENTAL RIGHTS TO THE CHILD; HER iii. NO EVIDENCE WAS PRESENTED THAT NATURAL FATHER WAS UNFIT NOR CAPABLE OF PROMOTING THE BEST INTEREST OF [CHILD] I.E. CARING ¦FOR [CHILD S] PHYSICAL, MENTAL, EMOTIONAL, EDUCATIONAL AND/OR SPIRITUAL WELL-BEING; AND iv. THIRD PARTIES HAVE NOT MET OR PRODUCED A SCINTILLA OF EVIDENCE TO TIP THE SCALES OR THEIR BURDEN OF PROOF OVER A NATURAL PARENT S PRIMA FACIE RIGHT TO CUSTODY OR NATURAL PARENT S RIGHT TO RAISE THEIR CHILDREN AS THEY SEE FIT? WHETHER THE TRIAL COURT SHOULD HAVE RECUSED ITSELF FROM THIS MATTER DUE TO IMPROPRIETY OR THE APPEARANCE OF IMPROPRIETY AND, AS SUCH, ABUSED -4- J-A03027-13 [ITS] DISCRETION AND COMMITTED AN ERROR OF LAW BY NOT DOING SO.[2] (Father s Brief at 7-9). Our scope and standard of review of a custody order are as follows: [T]he appellate court is not bound by the deductions or inferences made by the trial court from its findings of fact, nor must the reviewing court accept a finding that has no competent evidence to support it ¦. However, this broad scope of review does not vest in the reviewing court the duty or the privilege of making its own independent determination ¦. Thus, an appellate court is empowered to determine whether the trial court s incontrovertible factual findings support its factual conclusions, but it may not interfere with those conclusions unless they are unreasonable in view of the trial court s factual findings; and thus, represent a gross abuse of discretion. R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa.Super. 2009) (quoting Bovard v. Baker, 775 A.2d 835, 838 (Pa.Super. 2001)). Moreover, [T]he paramount concern in a child custody case is the best interests of the child, based on a consideration of all factors that legitimately affect the child s physical, intellectual, moral and spiritual wellbeing. [O]n issues of credibility and weight of the evidence, we defer to the findings of the trial [court] who has had the opportunity to observe the proceedings and demeanor of the witnesses. ____________________________________________ 2 To the extent Father now seeks to challenge the trial judge s failure to recuse himself, Father raised this issue for the first time in his appellate brief. Father did not assert this claim in his concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i). Therefore, the claim is waived. See Yates v. Yates, 963 A.2d 535 (Pa.Super. 2008) (reiterating issues not raised in Rule 1925 statement are deemed waived for purposes of appellate review). -5- J-A03027-13 The parties cannot dictate the amount of weight the trial court places on evidence. Rather, the paramount concern of the trial court is the best interest of the child. Appellate interference is unwarranted if the trial court s consideration of the best interest of the child was careful and thorough, and we are unable to find any abuse of discretion. R.M.G., Jr., supra at 1237 (internal citations omitted). The test is whether the evidence of record supports the trial court s conclusions. Ketterer v. Seifert, 902 A.2d 533, 539 (Pa.Super. 2006). The new Child Custody Act, codified at Section 5328 on November 23, 2010 (effective January 24, 2011) provides: § 5328. Factors to consider when awarding custody (a) Factors. In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child, including the following: (1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party. (2) The present and past abuse committed by a party or member of the party s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child. (3) The parental duties performed by each party on behalf of the child. (4) The need for stability and continuity in the child s education, family life and community life. (5) The availability of extended family. (6) The child s sibling relationships. -6- J-A03027-13 (7) The well-reasoned preference of the child, based on the child s maturity and judgment. (8) The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm. (9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child s emotional needs. (10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child. (11) The proximity of the residences of the parties. (12) Each party s availability to care for the child or ability to make appropriate child-care arrangements. (13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party. (14) The history of drug or alcohol abuse of a party or member of a party s household. (15) The mental and physical condition of a party or member of a party s household. (16) Any other relevant factor. 23 Pa.C.S.A. § 5328(a). When deciding a petition to modify custody under the new Child Custody Act, the court should conduct a thorough analysis of the best interests of the child based on all of the Section 5328(a) factors. E.D. v. M.P., 33 A.3d 73 (Pa.Super. 2011). See also J.R.M. v. J.E.A., 33 -7- J-A03027-13 A.3d 647 (Pa.Super. 2011) (stating court must address relevant factors and conduct case-by-case analysis of what is in child s best interests).3 After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinions of the Honorable Joseph F. Kameen, we conclude Father s issues merit no relief. The trial court opinions comprehensively discuss and properly dispose of the questions presented. (See Trial Court Opinion, filed September 6, 2012, at 6-11;4 Trial Court Opinion, filed July 16, 2012, at 6-15) (finding: issues regarding third party custody claims are irrelevant to order on appeal, which relates to custody dispute between Mother and Father only; court correctly applied provisions of new Child Custody Act; Mother demonstrated consistency in providing parenting and care for Child; despite Mother s shortcomings, she has ____________________________________________ 3 This Court has held that Section 5328 applies to cases where the evidentiary proceeding commences on or after the effective date of the recent Child Custody Act; the provisions of the new Act apply even if the request or petition for relief was filed prior to the effective date. C.R.F. v. S.E.F., 45 A.3d 441 (Pa.Super. 2012). In other words, it is the date of the commencement of the hearing that determines whether the [new] Act applies, not the date the petition or complaint was filed. Id. at 445. Instantly, the custody trial occurred on July 9, 2012, after the effective date of the new Act. Therefore, the new Act applied. See id. 4 The court suggests Father s notice of appeal, filed on August 16, 2012, was untimely. Although the docket entries list the filing date of the final custody order as July 16, 2012, the prothonotary time-stamped the order as FILED on July 17, 2012. Further, the prothonotary served Father with a copy of the order on July 17, 2012. Thus, Father timely filed the notice of appeal. See In re L.M., 923 A.2d 505 (Pa.Super. 2007) (explaining order is not appealable until entered on docket with required notation that appropriate notice has been given). -8- J-A03027-13 exhibited higher level of concern for Child s physical, emotional, educational, medical, and social needs; Mother s decision to enter into temporary custody arrangement with paternal grandparents, allowing grandparents to provide for Child s custodial needs, evidences Mother s willingness to make appropriate adjustments in her own life to meet Child s needs; Father failed to present credible evidence to support his claim that granting legal or primary physical custody to him would serve Child s best interests; Father failed to present any evidence to justify relocating Child to Pittsburgh; best interests of Child dictate that Mother receive full legal and primary physical custody of Child with right to extend legal and temporary physical custody to paternal grandparents; Father shall receive partial physical custody, provided he completes reunification counseling with Child). Accordingly, we affirm on the basis of the trial court s opinions. Order affirmed. -9-

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